Monday, September 2, 2013

Comment on NY opinion on "specialties" and LinkedIn

I have more than once complained about the lack of common sense when it comes to rules related to advertising lawyers' "specialties." (See here, for example.) Adding to this issue, the New York State Bar Association recently issued an ethics opinion on lawyer use LinkedIn’s “specialty” feature. See Ethics Opinion (EO) 972.

The opinion concludes that listing practice areas under LinkedIn's “Specialties” section would constitute a claim that a lawyer or firm is a specialist in a particular field of law and thus, absent certification would violate New York Rule of Professional Conduct 7.4(a). One problem with the opinion, however, is that as of March 2012, LinkedIn deleted the specialties option.

But the opinion raises a number of other issues that merit discussing. First, again, I think it is nonsense to argue that it is improper for an attorney to advertise he or she specializes in a certain area of the law. See my previous posts on this for more on that.

Second, it is worth asking whether states are fighting a losing battle when attempting to regulate the use of social media which changes so quickly. And, if so, it is worth asking what is the better approach.

Carolyn Elefant has a short comment on this subject in her blog MyShingle.com here.
Her position is simple: Lawyers’ ethical obligations when using social media may be summarized with a simple mandate: "No deception." Yet, she argues, "rather than invoke the simple litmus test of whether a communication is deceptive to a reasonable viewer to evaluate lawyer advertising, disciplinary committees feel compelled to spill thousands of words analyzing the ethics of each and every feature of each and every iteration of each and every social media platform."

And her conclusion: "I’m not suggesting that the bars relax regulation of lawyers using
social media. But when it comes to the ethics of social media, one
small graphic combined with a little bit of common sense is worth not
just 1000 words but thousands of dollars in savings as well."